Asha Prakash Vs the State of Jharkhand through Secretary Deptt of School Education and Literacy Development

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (S) No. 2606 of 2023

Asha Prakash, aged about 61 years, wife of Raghu Nandan Roy, C/o Shri Raj Pati Roy, B.A.O., resident of Mohalla-New Kajaria Colony, P.O&P.S -Jasidih, District Deoghar, Jharkhand having permanent address, Flat No. 102, Pratibha Heights Apartment, North Raj Nagar, P.G.S. More, Khagol Road, Danapur, Patna 801503 (Bihar)

¶4

Versus

¶5

The State of Jharkhand through Secretary, Department of school education and literacy Development, Government of Jharkhand, M.D.I. Building, P.O&P.S- Dhurva, Ranchi.

¶6

The Director of Education (Primary Education), Human Resources Department Government, of Jharkhand, M.D.I. Building, P.O&P.SDhurva, Ranchi.

¶7

The Deputy Commissioner, Deoghar, P.O&P.S Deoghar, Deoghar, Jharkhand.

¶8

The District Education Officer, Deoghar, P.O&P.S Deoghar, Deoghar, Jharkhand.

¶9

The District Superintendent of Education cum- District Programme Officer, Deoghar, P.O&P.S Deoghar, Deoghar Jharkhand.

¶10

… … Respondents

¶11

¶12

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

¶13

--For the Petitioner : Mr. Ankitesh Kumar Jha, Advocate : Mr. Anil Kumar, Advocate For the Respondents : Mr. Kishore Kumar Singh, S.C. V : Mr. Krishna Prajapati, A.C. to S.C. V ---

¶14

12 /06.03.2024 Learned counsel for the parties are present.

¶15

2. This writ petition has been filed for the following reliefs:

¶16

“ (i) That the petitioner's service should be counted and regularize since 16.08.2005 for all purposes from the date of publication of selection list of the petitioner as Primary School Teacher by Jharkhand Public Service Commission. (ii)That the petitioner should be given all monetary benefits, since 14.03.2008, the order of Hon'ble High Court, Jharkhand, Ranchi passed in W.P. (s) No. 3263 of 2007 by which the Hon'ble High Court issued direction to the respondents for joining of petitioner within 6 (six) weeks from the date of order.

¶17

(iii) That the period since 18.05.2005 to 01.12.2013 i.e. above 08 years should be treated regular service of petitioner for all purposes.

¶18

(iv) For direction upon respondents to decide the representation dated 03.09.2014, 22.07.2014, 13.07.2017, 04.03.2022 and 22.10.2022 given by petitioner to the respondents forwarding her claim mentioned in the present writ petition.

¶19

2

¶20

(v) Further for issuance Writ/Order/Direction as Your Lordships may deem fit of appropriate and proper to conscionable justice to the petitioner.”

¶21

3. It is the case of the petitioner that the petitioner had participated in the selection process pursuant to the Advertisement published by Jharkhand Public Service Commission (In short JPSC) for appointment of Primary Trained Teacher in the examination for the year 2002-03 and the petitioner had applied for the post from the district of Jamtara. However, when the result was published on 18.08.2005, the name of the petitioner found place at serial no. 8 in the merit list of successful candidates from the district of Deoghar and consequently the District Superintendent of Education, Deoghar issued letter informing that the recommendation of the appointment of the petitioner has been canceled vide letter no. 10.08.2006 on the ground of option of different district.

¶22

4. It is further case of the petitioner that such error had happened at the end of JPSC and therefore the petitioner cannot suffer. The petitioner filed a writ petition before this Court being W.P. (S) No. 3263 of 2007 challenging the order of cancellation. In the said writ petition a supplementary counter affidavit was filed by JPSC stating that the case of the petitioner could be considered for the district of Deoghar subject of the order of the court. The writ petition was disposed of vide order dated 14.03.2008 considering the peculiar facts of the case by directing the JPSC to consider the case of the petitioner for being appointed in Deoghar as early as possible, preferably within a period of 6 weeks from the date of the order. However, the joining letter was issued to the petitioner belatedly vide memo no. 1649 dated 23.11.2013 and consequently the petitioner joined the service on 02.12.2013 and on account of this fact the petitioner could not complete 10 years of service. It is the case of the petitioner that the petitioner cannot be made to suffer for errors, delay and latches on the part of the respondents.

¶23

5. The records further reveal that the aforesaid order dated 14.03.2008 passed in W.P. (S) No. 3263 of 2007 was not complied and a contempt case being Contempt Case (Civil) No. 355 of 2008 was filed by the petitioner and in the meantime the order of the Court

¶24

3

¶25

stood was complied by JPSC vide memo no. 660 dated 26.05.2008 (Annexure-3) and ultimately contempt proceeding was dropped vide order dated 28.07.2011 (Annexure-2).

¶26

6. The records further reveal that the order passed by the writ Court in W.P. (S) No. 3263 of 2007 dated 14.03.2008 was challenged by the State of Jharkhand in L.P.A. No. 297 of 2013 with a petition for condonation of delay of 1969 days; L.P.A. remained pending and was ultimately dismissed vide order dated 24^th November 2014, though the delay in filing the appeal was condoned.

¶27

7. It is the case of the petitioner that in spite of memo no. 660 dated 26.05.2008 issued by JPSC the respondents did not give joining letter to the petitioner and the joining letter was issued to the petitioner vide memo no. 1649 dated 23.11.2013 by stating that the joining letter would be subject to the order to be passed in L.P.A. No. 297 of 2013 and consequently the petitioner joined the service on 02.12.2013 and subsequently on 24^th November 2014, the L.P.A. No. 297 of 2013 was dismissed.

¶28

8. In the aforesaid factual background, the learned counsel for the petitioner has referred to paragraph nos. 13 and 14 of the writ petition to submit that due to harassing attitude of the respondents, in spite of order of the Court dated 14.03.2008 and order of JPSC dated 26.05.2008, the petitioner was not issued any joining letter for at least five years and there was no fault on the part of the petitioner and that the petitioner joined the service under protest and filed representations dated 03.09.2014, 22.07.2014, 13.07.2017, 04.03.2022 and 22.10.2022 to the Director, Primary Education and copy to other authorities seeking to regularization of the services for the period from 18.08.2005 to 01.12.2013 and for counting the period for the purposes of computing the retiral benefits but no order was passed and in the meantime the petitioner attained the age of superannuation on 31.12.2021 upon completing a service period of 8 years and 11 months when counted from the date of joining i.e. 02.12.2013.

¶29

9. The learned counsel has submitted that on account of completion of less than 10 years of service the petitioner has been deprived of the retiral benefits.

¶30

4

¶31

10. He has submitted that there was no laches or delay on the part of the petitioner and in spite of orders passed by this Court followed by the letter issued by the JPSC way back in the year 2008, the petitioner was deprived of the fruit of the recommendation and consequently, the petitioner cannot be made to suffer on account of laches on the part of the respondents.

¶32

11. The learned counsel has relied upon the judgment passed by Hon’ble Calcutta High Court in the case of

¶33

(i) Golabadan Mandal versus the State of Jharkhand 2023 SCC Online Cal. 2267

¶34

(ii) Sumohan Mandal versus State of West Bengal, 2018 SCC Online Calcutta 13325

¶35

(iii) State of West Bengal versus Aparesh Chandra Dutta reported in (2016) SCC Online Cal. 486 and has also referred to the appellate order passed by Hon’ble Calcutta High Court in the case of Sumohan Mandal and has submitted that the appeals were dismissed against that the State of West Bengal has preferred Special Leave to Appeal bearing No. 19383-19386 of 2022 which has been dismissed vide order dated 01.11.2022.

¶36

12. The learned counsel submits that in the case of Sumohan Mandal (supra), in spite of order passed by the High Court directing giving appointment way back as on 30.10.2003 the authorities issued the appointment letter only on 15^th May 2012 and consequently it was directed that the authorities will treat the petitioner as notionally appointed w.e.f. 30.10.2003 and grant pensionary benefit accordingly. The learned counsel submits that similar order may be passed in the present case.

¶37

13. The learned counsel appearing on behalf of the respondents on the other hand has opposed the prayer of the petitioner and has submitted that no direction as such has been issued granting appointment to the petitioner and therefore the case of the petitioner is distinguishable from the case of Sumohan Mandal(supra) as cited by the petitioner.

¶38

14. The learned counsel further submits that the provisions of Rule 34 of the Jharkhand Service Code is required to be considered in as

¶39

5

¶40

much as the question of any service benefit prior to date of joining cannot be granted. He has submitted that the petitioner entered into the cadre only in the year 2013 and therefore no notional benefit can be conferred upon the petitioner in terms of the Rule governing the petitioner.

¶41

15. Upon specific query raised by this Court, the learned counsel for the respondents is not in a position to satisfy this Court as to why the recommendations made by the JPSC in favour of the petitioner as back as on 26.05.2008 pursuant to the order passed by this Court were not acted upon by the state. However, in response, he has submitted that the matter was taken up in the District Education Establishment Committee Deoghar in its meeting dated 16.11.2011 and they found it proper to seek direction from the Principal Secretary of the Department and consequently the direction was issued only on 23.11.2013 to give appointment to the petitioner and immediately thereafter the letter was appointment was issued to the petitioner on 23.11.2013; the petitioner was posted in upgraded middle school, Mathurapur, Jasidih ; the petitioner joined on 02.12.2013 and attained the age of superannuation on 31.12.2021. 16. The learned counsel submits that all the benefits in terms of the service rules governing the petitioner with respect to post retiral benefits have already been paid, but so far as pension is concerned, the petitioner is not entitled as she has not completed 10 years of service which is a condition precedent for grant of pension.

¶42

17. The learned counsel for the respondents has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2020) 1 JLJR (SC) 405 , paragraph 16 which is quoted as under: -

¶43

“ 16. Whilst it is true that limitation does not strictly apply

¶44

to proceedings under Articles 32 or 226 of the Constitution, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and the writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fencesitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In S.S.

¶45

6

¶46

Balu v. State of Kerala [ S.S. Balu v. State of Kerala , (2009) 2 SCC 479, this Court observed thus:

¶47

“ 17 . It is also well-settled principle of law that “delay defeats equity”. … It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment .”

¶48

18. So far as judgment relied upon by the respondent reported in (2020) 1 JLJR (SC) 405 (supra) is concerned, the same does not apply to the facts and circumstances of this case in view of the fact that the delay and laches is completely on the part of the respondents and the petitioner cannot be said to be fence sitters; rather the petitioner had taken appropriate steps at the relevant time but there is no explanation on the part of the respondents for not acting pursuant to the recommendation by JPSC way back in the year 2008 till 2013 when the joining letter was issued to the petitioner pursuant to which she joined the service. The entire sequence of events has been recorded in the submissions of the petitioner which are not in dispute from the side of the respondents.

¶49

19. After hearing the learned counsel for the parties and considering the facts and circumstances of this case this court finds from the perusal of the writ records including the counter affidavit that it is not in dispute that the petitioner had applied for vacancy in Jamtara district and the name of the petitioner figured in selection list published on 18.05.2005 for the district of Deoghar, instead of Jamtara. This led to cancelation of the appointment of the petitioner in the district of Deoghar vide order 10.08.2006.

¶50

20. The petitioner challenged the order of cancellation in the aforesaid writ petition disposed of on 14.03.2008 and as a sequel to the stand taken by JPSC in the writ proceedings and direction issued by this Court, letter dated 26.05.2008 was issued wherein the name of the petitioner was recommended by JPSC for appointment. This happened during the pendency of contempt petition numbered as Cont. (Civil) No. 355 of 2008 and on account of issuance of the aforesaid letter dated 26.05.2008 the contempt proceedings were dropped on 28.07.2011.

¶51

7

¶52

21. In spite of all this, the letter of recommendation issued by JPSC dated 26.05.2008 was not acted upon by the respondent state for years together on account of unexplained reasons and matter was taken up by District Establishment Committee, Deoghar on 16.11.2011 wherein a decision was taken to seek guidance from the department. The counter affidavit is completely silent as to why the recommendation was not acted upon and no action was taken by the respondents at least till 16.11.2011. It further appears that the response to the aforesaid letter dated 16.11.2011 was given by the department only on 17.10.2013 and consequently a letter dated 23.11.2013 was issued to the petitioner in terms of the recommendation dated 26.05.2008 by stating that the joining would be subject to the order to be passed in L.P.A. No. 297 of 2013; the petitioner joined the service on 02.12.2013 and on 24^th November 2014, the L.P.A. No. 297 of 2013 was dismissed. The petitioner had joined the service under protest and filed representations dated 03.09.2014, 22.07.2014, 13.07.2017, 04.03.2022 and 22.10.2022 to the Director, Primary Education and copy to other authorities seeking to regularization of the services for the period from 18.08.2005 to 01.12.2013 and for counting the period for the purposes of computing the retiral benefits but no order was passed and in the meantime the petitioner attained the age of superannuation on 31.12.2021 upon completing a service period of 8 years and 11 months when counted from the date of joining i.e. 02.12.2013.

¶53

22. This Court finds that the petitioner has suffered on account of laches and delay on the part of the respondents and the initial error was committed by JPSC who had recommended the name of the petitioner for Deoghar District but the petitioner had applied for the district of Jamtara. In spite of letter dated 26.05.2008 issued by JPSC pursuant to the order passed in W.P. (S) No. 3263 of 2007 dated 14.03.2008, the petitioner continued to suffer as joining letter was not issued to the petitioner for unexplained reasons. Joining letter dated 23.11.2013 was issued to the petitioner in terms of the recommendation of JPSC dated 26.05.2008 after expiry of more than 5 years. This has resulted in serious civil consequences against the petitioner particularly in the matter of entitlement of pensionary

¶54

8

¶55

benefits as the petitioner could not complete required 10 years of service from the date of joining till her date of retirement. The period of shortfall is 1 years 10 months and 22 days. Taking into consideration the aforesaid totality of the facts and circumstances of this case, this Court is of the view that the petitioner cannot be deprived of the retiral benefits merely by referring to the Jharkhand Service Code which certainly provides that the emoluments commence from the date of joining. The unexplained delay and latches of the respondents has to be taken into consideration.

¶56

23. In order to balance the equity between the parties and to ensure that the petitioner is not deprived of retiral benefit on account of latches and delay on the part of the respondents, this Court directs that the date of service of the petitioner would be taken as a date previous to her actual joining of service only to the extent of completion of 10 years of service to entitle the petitioner to avail the pensionary benefits.

¶57

24. The respondent no.2 is directed to issue necessary follow up order regarding pensionary benefits to the petitioner followed by appropriate steps so that the monetary benefits arising out of pension be remitted to the petitioner within a period of two month from the date of filing of representation by the petitioner along with the copy of the writ records and a copy of this order.

¶58

25. This writ petition is accordingly disposed of with the aforesaid observations and directions.

¶59

26. Pending interlocutory application, if any, is closed.

¶60

(Anubha Rawat Choudhary, J.)

¶61

Binit

Asha Prakash v. the State of Jharkhand through Secretary Deptt of School Education and Literacy Development

Case brief

What is this about?

What did the court decide?

Asha Prakash v. the State of Jharkhand through Secretary Deptt of School Education and Literacy Development

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Jagannath Bhagat Vs the Chairman Coal India Ltd. Cil

Indradeo Pandit Vs State of Jharkhand through the Principal Secretary Deptt of Higher and Technical Education

Sunita Devi Vs Central Coal Fields Limited through Its Chairman Cum Managing Director

Sanjay Kumar Alias Sanjay Sao Alias Sanjay Sao Kanhu Vs the State of Jharkhand

Jharkhand State Electricity Bo Vs M/S K.Y.S.Manufacturers And Exp

Anju Devi Vs the State of Jharkhand